Mandatory E-Verify May Be Coming, Are You Ready?

E-Verify is about to play a critical role under the Trump administration.

The electronic service, launched in 1996, is primarily a voluntary web-based system, though it could soon become mandatory. E-Verify enables employers to quickly determine whether information supplied by job applicants on their I-9 forms is consistent with data held by the Social Security Administration and the Department of Homeland Security.

In effect, this is a faster version of the basic paper-based I-9 system. Employers submit I-9 data electronically, and, generally within a few seconds find out whether the information is verified. When discrepancies crop up, processes are in place to resolve them — assuming they can be resolved. Still, many employers don’t use E-Verify for various reasons unless required to do so.

Opposition in Congress to requiring all employers to use E-Verify so far has been successful in blocking legislation that would make that happen, but with illegal immigration a front-burner issue, the tables could be turned. Pending legislation in Congress, HR 3711, the Legal Workforce Act, would make E-Verify use mandatory.

Big in the South

The largest proportion of employers in southern states (70%) already use E-Verify, according to a Pew Charitable Trust study. In contrast, just 39% of employers in the Northeast utilize the service. The national total is 57%, according to the Pew study.

The service is free with the federal government picking up the cost to administer it. The fiscal 2019 budget proposal, unveiled earlier this year, calls for adding $23 million to the E-Verify program budget to accommodate additional staffing that would be required if E-Verify becomes mandatory for all employers.

The budget proposal also provides for funding to enable Homeland Security to beef up its I-9 auditing program and conduct more worksite raids. Last fall, the head of the Immigration and Customs Enforcement (ICE) component of Homeland Security vowed that its worksite investigations would increase by “four or five times” in 2018.

According to Homeland Security, 1,400 new employers are beginning to use E-Verify every week, and 700,000 employers already do so.

Potential Issues with E-Verify

E-Verify offers many benefits. It provides a much faster way for employers to know whether they could have an immigration status problem to resolve. This can help avoid the stiff penalties that are imposed on companies that employ workers who violate immigration laws. It’s important to note that the legal standard employers must hold to is applied even if they didn’t know the status of an employee, but should have known.

Another argument in favor of using E-Verify centers on foreign nationals in the United States working under H1-B visas, who typically have a high level of technical training. These workers are generally able to stay on board longer, because there’s no need to petition to have their visas extended by 17 months after the initial allowed work period has been reached.

Finally, if you get a green light via E-Verify on an employee’s immigration status and it turns out that the system made an error, you’ll have an easier time in court defending your decision to hire the individual.

So what’s the downside? Common complaints about the use of E-Verify include:

Instructions for entering data can be confusing and lead to errors,

Regulations governing E-Verify are complex,

Deadlines for entering data are tight and if they are missed, you’re locked out of the system,

Requirements for signature verification are cumbersome,

Employers are exposed to litigation risk if they fail to advise employees of “tentative non-confirmations” of immigration status returned by the system, and

Employers must exercise extreme caution to ensure that the security of the electronic data isn’t compromised.

Who is Currently Required to Use E-Verify?

All employers in Arizona and Mississippi are required to use E-Verify by state law. Federal contractors in all states, plus state contractors in Colorado, Georgia, Missouri, Nebraska, Oklahoma, Rhode Island and Utah must use E-Verify. Also, state agencies in Colorado, Georgia, Idaho, Minnesota, Missouri, Nebraska, North Carolina, Oklahoma, Rhode Island and Utah must use E-Verify.

California sits on the other side of the issue, prohibiting its cities and counties from enacting requirements that require employers to use E-Verify, except in cases in which it’s required by federal law.

If you have questions about requirements you may face with regard to E-Verify, check with your labor attorney.